The Supreme Court on Tuesday stepped in to resolve the Varanasi mosque row and directed the District Magistrate to ensure that the "Shivlinga" found during a survey be duly protected.
Not just that, the area where the ‘Shivlinga’ has been found, too has to be protected.
The local court had earlier passed an order on Monday sealing off the area of the mosque where the ‘Shivlinga’ was found.
An Apex Court Bench of Justices DY Chandrachud and PS Narasimha also allowed Muslims to access the mosque, so that their right to offer prayers and adhere to religious observances is not impeded. It has thus lifted the embargo imposed by a Varanasi court.
The court also clarified that Muslims will be allowed to perform wazu (cleansing) since it is part of religious observations.
The trial judge’s directions that only 20 people will pray and offer ‘namaz’ etc will also not operate.
Senior lawyer Huzefa Ahmadi, heading a batch of lawyers appearing for the management of the mosque, urged the court to restrain the Civil Judge, Varanasi, from passing any further orders in the matter.
Justice Chandrachud, however, declined to stay the proceedings before the Varanasi court, observing that ordinarily when the top court is seized of a matter, subordinate court must desist from passing orders.
Pointing to the “lack of the fairness in the proceedings” of the Civil Judge, Ahmadi said that orders have been passed ex parte and the May 16 order was passed on an application of the plaintiff even when court appointed local advocate commissioner was conducting the survey and was yet to file his report, as ordered by the trial court.
The matter will be heard again on Thursday, May 19.
The counsel for Muslim parties also submitted that all the orders passed by the civil court in Varanasi go against the Supreme Court judgment in the Ayodhya case.
"These are completely against the M Siddique judgment and the Ayodhya verdict, which says you cannot tinker with the places of worship as existing on August 15, 1949. This is suspect to great mischief," he said.
"What I am also seeking is a stay of all these orders (passed by a Varanasi court). These orders are not good on ground of jurisdiction. These orders, whereby the commission etc have been appointed must come to a standstill. The status quo as it existed on date of the suit should be maintained. All orders are illegal," Ahmadi persisted.
He further said that the sealing order in the Mosque should not be allowed to continue since it was patently illegal and passed without hearing the other side.
"It is almost like sealing a property. Please see Section 3 of Places of Worship Act. It cannot be done. The basis (of their case) is that a historical wrong was committed and so the right to worship be restored. But Supreme Court has held made an exception in Ayodhya case only. I would have preferred the maintainability to be decided here as well. I will show how all these orders passed are patently without even jurisdiction," Ahmad argued.
SG Tushar Mehta, appearing for the State of Uttar Pradesh, sought time to take instructions before any order is passed.
"Where is the Shivling? Even the magistrate has not seen it,’’ the Bench remarked during the proceedings.
"What if someone destroys the Shivling?" the SG said. "We will ask DM to ensure security," the Bench responded.
